The Department of Justice (DOJ) just issued a memo saying that Title IX bans anti-LGBTQ discrimination in schools, a sharp rebuke to the Trump administration’s opposition to protections for students.
The Trump administration spent four years fighting against the idea that laws that ban discrimination “based on sex” ban anti-LGBTQ discrimination, particularly in schools. But President Joe Biden appointed one of the chief legal advocates of that argument to a key position in his administration, and she’s already working to restore LGBTQ rights.
In 2017, then-Secretary of Education Betsy DeVos issued guidance to schools saying that Title IX did not protect LGBTQ students, shortly after she and Attorney General Jeff Sessions revoked Obama era guidance that said the opposite. Title IX bans discrimination “based on sex” in education.
DeVos remained fiercely opposed to LGBTQ protections throughout the Trump era, even issuing a last-minute memo this past January begging Department of Education employees to keep anti-LGBTQ discrimination legal in schools as Biden took office.
At the time, the DeVos guidance move was one of the Trump administration’s first attacks on LGBTQ civil rights protections implemented in the Obama era. While some federal courts had accepted the argument that discrimination based on sex necessarily includes anti-LGBTQ discrimination – because someone can’t discriminate against LGBTQ people without taking sex into account – the Supreme Court had not yet ruled on the matter.
Out Stanford law professor Pamela Karlan represented the plaintiffs in Bostock v. Clayton Co., the 6-3 Supreme Court decision last year that agreed with this position and said that Title VII’s sex-based discrimination ban also protects LGBTQ people.
Biden appointed Karlan to be Deputy Assistant Attorney General at the DOJ.
“After considering the text of Title IX, Supreme Court caselaw, and developing jurisprudence in this area, the [DOJ Civil Rights] Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation,” wrote Karlan in the memo.
The move prepares the Biden administration for upcoming legal battles for the rights of transgender students as states across the U.S. consider and pass laws banning trans students from participating in school sports, forcing schools to out possibly trans students to their parents, and restricting the bathrooms trans students can use. The White House saying that federal law bans this type of discrimination can only help trans youth and their advocates in court.
In the three-page memo, Karlan explains that the reasoning in Bostock regarding employment protections can be easily applied to discrimination protections in education. She cites a few lower court judges that have already said just that, both in cases where trans students were banned from using the bathroom of their gender.
Bostock was a landmark Supreme Court for LGBTQ rights, but it wasn’t even Karlan’s first. She helped win United States v. Windsor, the 2013 decision that said that the federal government had to recognize same-sex marriages performed by the states, two years before the Supreme Court legalized marriage equality in all states.
Shortly after, President Barack Obama appointed her U.S. Deputy Assistant Attorney General for Voting Rights, and she was honored with the DOJ’s highest honor for her work there, the Attorney General’s Award for Exceptional Service.